Greenag Pty Ltd ATF Greenag Trust (Migration)

[2022] AATA 3124

Greenag Pty Ltd ATF Greenag Trust (Migration) [2022] AATA 3124 (19 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Greenag Pty Ltd ATF Greenag Trust

CASE NUMBER:  1914357

HOME AFFAIRS REFERENCE(S):          BCC2017/3789200

MEMBER:Terrence Baxter

DATE:19 July 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 19 July 2022 at 9:57am

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream –applicant failed to provide the requested information within the prescribed period – not satisfied that at the time of this decision the applicant has the financial capacity to pay the nominee’s full-time salary package for at least two years– nominator did not provide any updated or current information –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 5.19

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 May 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Greenag Pty Ltd as trustee for the Greenag Trust, applied for approval on 16 October 2017. The applicant nominated Ms Wanling Shen (the nominee) in the position of Secretary. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy:

   a.reg 5.19(4)(a)(ii) of the Regulations because the delegate found that the application did not identify a need for the applicant to employ the nominee to work in the position under the applicant’s direct control.

   b.reg 5.19(4)(d) of the Regulations because the delegate found that the applicant had not established that the nominee would be employed on a full-time basis in the position for at least two years and that the terms and conditions of employment did not include an express exclusion of the possibility of extending the period of employment.

   c.reg 5.19(4)(e) of the Regulations because the delegate found that the applicant had not established that the terms and conditions of employment applicable to the position would be no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 5 June 2019.

6. On 17 June 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (Cth) (the Act) inviting it to provide current information addressing the relevant criteria under reg 5.19(2) and (4) of the Regulations. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The invitation notified the applicant that the requested information should be received by the Tribunal by 1 July 2022. The invitation included the following advice:

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. The applicant will also lose any entitlement it might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.

7. The applicant failed to provide the information within the extended time for responding to the invitation. No response to that invitation has been received by the Tribunal at the time of this decision.

8. Where a review applicant is invited to provide further information in accordance with s 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information, according to s 359C(1) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, the effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

9. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

10. The Tribunal has taken into account that the applicant has been aware since 17 May 2019 of the reasons for the nomination application being refused and also that the implications of not providing the information requested in the invitation from the Tribunal of 17 June 2022 were set out in that correspondence.

11. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under reg 5.19(2) and (4) of the Regulations.

12. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation and having due regard to the documentary material before it.

13. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence presented to the Department

15. The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) documents including the following:

    a.A letter from the applicant regarding its correspondence with ASIC relating to the registration of Greenag Pty Ltd.

    b.An advice from the Regional Certifying Body (RCB), the Queensland Chamber of Commerce and Industry, dated 18 September 2017.

    c.An Assessment Statement of the RCB dated 18 September 2017.

    d.An updated advice and Assessment Statement of the RCB also dated 18 September 2017.

    Evidence presented to the Tribunal

16. The applicant produced to the Tribunal a copy of the delegate’s decision record.

    Term of employment of the visa holder: reg 5.19(4)(d)

17. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

18. The applicant failed to produce to either the Department or the Tribunal an employment agreement for the position.

19. It is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The salary to be paid to the nominee according to the nomination application is $48,000 per annum. Based on the current superannuation guarantee contribution of 10.5% of ordinary earnings, this represents a salary package of $53,040 per annum.

20. The applicant has failed to provide any evidence to the Department or the Tribunal regarding its trading status. The applicant has not produced financial statements, taxation returns or activity statements to either the Department or the Tribunal.

21. In the Tribunal’s invitation of 17 June 2022, the applicant was invited to provide updated and current information addressing the relevant criteria in reg 5.19 of the Regulations, including copies of the applicant’s lodged tax returns for the last two full financial years, business activity statements lodged with the ATO for the last 24 months and financial statements prepared in accordance with Australian accounting standards including profit and loss statements and balance sheets for the two most recent financial years. The applicant failed to produce any of those documents.

22. Having regard to the lack of any such contemporary evidence and bearing in mind that the applicant has failed to respond to the invitation issued pursuant to s 359(2) of the Act, the Tribunal is not satisfied that at the time of this decision the applicant has the financial capacity to pay the nominee’s full-time salary package for at least two years and that the nominee will be employed on a full-time basis in the position for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(i) is not met.

23. As the applicant has failed to produce any copy of an employment agreement, the applicant has not demonstrated that the terms and conditions of the nominee’s employment will not include an express exclusion of the possibility of extending the period of employment. Accordingly, the requirement in reg 5.19(4)(d)(ii) is not met.

24. Accordingly, the requirement in reg 5.19(4)(d) is not met.

25. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

26. The Tribunal affirms the decision under review to refuse the nomination.

    Terrence Baxter
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       all of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).